Handwerker v City of New York

Handwerker v City of New York 2011 NY Slip Op 08668 Decided on December 1, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 1, 2011
Andrias, J.P., Friedman, DeGrasse, Freedman, Manzanet-Daniels, JJ. 6038-
6039 112462/07

[*1]Alexis Handwerker, Plaintiff-Respondent-Appellant,

v

The City of New York, et al., Defendants-Appellants-Respondents.




Kaye Scholer LLP, New York (William Hoffman of counsel),
for appellant-respondent.
Pollack Pollack Isaac & DeCicco, New York (Brian J. Isaac of
counsel), for respondent-appellant.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered September 23, 2010, which, in this action for personal injuries allegedly sustained when plaintiff, while sitting on a park bench, was struck by a branch that fell from a tree, denied defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion to strike the answer for spoliation of evidence, unanimously affirmed, without costs.

Dismissal of the complaint was not warranted since the record presents triable issues of fact as to whether defendants had constructive notice of the alleged condition of the tree. Plaintiff submitted evidence, including affidavits from experts, showing that there were clear, visible signs of the tree's decay that existed for several years and that defendants performed work on the tree prior to the accident (see Harris v Village of E. Hills, 41 NY2d 446 [1977]; compare Clarke v New York City Hous. Auth., 282 AD2d 202 [2001]]).

The court did not improvidently exercise its discretion in considering the affidavits of plaintiff's experts. There is no evidence that plaintiff willfully failed to disclose the experts in a timely manner; nor was there prejudice to defendants (see Martin v Triborough Bridge & Tunnel Auth., 73 AD3d 481 [2010], lv denied 15 NY3d 713 [2010]; Gallo v Linkow, 255 AD2d 113, 117 [1998]).

Furthermore, the court properly denied plaintiff's cross motion to strike defendants' answer as a sanction for the partial destruction of the subject tree, without prejudice to plaintiff's [*2]ability to move for an adverse inference charge at trial. The record shows that portions of the tree were preserved and that the tree was photographed (see Rodriguez v 551 Realty LLC, 35 AD3d 221 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 1, 2011

CLERK